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Qube Cinema Technologies Pvt. Ltd V/S GST & CCE, Chennai North


Company & Directors' Information:- QUBE CINEMA TECHNOLOGIES PRIVATE LIMITED [Active] CIN = U92490TN1986PTC012536

Company & Directors' Information:- QUBE CORPORATION PRIVATE LIMITED [Active] CIN = U45200DL2008PTC179772

Company & Directors' Information:- IN TECHNOLOGIES PRIVATE LIMITED [Active] CIN = U72900DL2010PTC210298

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- CINEMA COMPANY INDIA PRIVATE LIMITED [Strike Off] CIN = U74999MH2014PTC255501

Company & Directors' Information:- A-QUBE TECHNOLOGIES PRIVATE LIMITED [Strike Off] CIN = U72200TN2011PTC080944

Company & Directors' Information:- E TECHNOLOGIES PRIVATE LIMITED [Strike Off] CIN = U72900DL2000PTC106075

Company & Directors' Information:- K-TECHNOLOGIES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72900KL2006PTC019422

Company & Directors' Information:- AT TECHNOLOGIES PRIVATE LIMITED [Active] CIN = U72900PN2007PTC130827

Company & Directors' Information:- CHENNAI CINEMA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U92111TN2004PTC053192

Company & Directors' Information:- G TECHNOLOGIES PRIVATE LIMITED [Strike Off] CIN = U29299GJ2001PTC039300

    ST/42268 - 42270/2017 (Arising out of Order-in-Appeal No. 42/2017 (CTA-I) dated 09.08.2017 passed by the Commissioner of GST & CCE (Appeals), Chennai) and Final Order Nos. 41457-41459/2018

    Decided On, 09 May 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONORABLE JUSTICE: SULEKHA BEEVI
    By, MEMBER AND THE HONORABLE JUSTICE: MADHU MOHAN DAMODHAR
    By, MEMBER

    For Petitioner: G. Mani, Advocate And For Respondents: B. Balamurugan, AC (AR)



Judgment Text


1. The issue involved in all these appeals being the same, they are heard together and disposed by this common order.

2. The appellants namely M/s. Qube Cinema Technologies Pvt. Ltd. (formerly known as M/s. Real Image Media Technologies Pvt. Ltd.) are aggrieved by the confirmation of service tax under the heading 'Supply of Tangible Goods'. The appellants are engaged in supply, installation and operation of digital camera equipment having Qube digital technology to various theatre owners on 'right to use' basis through an agreement entered with the parties. In terms of the said agreement/LOU, the theatre owners pay a non-refundable deposit and also pay 'per show fee' and in addition to this the appellant will have exclusive right of 20 mts. advertising time for every show. Further, the appellant has to install, commission and maintain all the appliances at their cost and these shall always remain the property of the appellants. The department was of the view that the supply of digital camera equipment on higher basis to theatre owners would fall within the definition of service as under Section 65B(44) of the Act, and the nature of the said service as defined under Section 66E(f) of the Finance Act, 1994 is liable to levy of service tax. Three separate SCNs were issued for various periods from July 2012 to March, 2015 and after due process of law, the original authority vide separate Order-in-Original confirmed the demands, interests and imposed penalties. In appeal, the Commissioner (Appeals) upheld the same. Hence the appellants are now before the Tribunal.

3. On behalf of the appellants, the Ld. Counsel, Shri G. Mani appeared and argued the matter. He submitted that for the very same activity in the appellant's own case, the Tribunal vide Final Order No. 43368 - 43369/2017 dated 14.12.2017, has set aside the demand to hold that the activity is not subject to levy of service tax under the category of 'Supply of tangible goods' service. The activity subjected to levy of service tax in the said final order is prior to the periods involved in these appeals. That before July, 2012 the department had demanded the service tax under supply of tangible goods service. After July, 2012 the definition of service was newly introduced in Section 65B(44). Section 65B(51) provided that taxable service means any service on which service tax is liable under Section 66N. The department has sought to levy service tax alleging that the activity falls under sub-clause (f) of Section 66E - declared services. He pointed out that Section 65B(44) sub-clause (ii) specifically excludes activity which involves transfer, delivery or supply of goods, which is deemed to be a sale within the meaning of clause 29A of article 366 of the Constitution. That the activity rendered by the appellants was analysed by the Tribunal in the above stated Final Order wherein the Tribunal held that the activity is a deemed sale and does not fall under the category of 'Supply of Tangible Goods' service. That, therefore the issue stands covered by the appellant's own case for the period after July, 2012 also. He prayed that the demand may be set aside.

4. The Ld. AR, Shri B. Balamurugan, AC, reiterated the findings in the impugned ordeRs.

5. Heard both sides.

6.1 Undoubtedly, the activity on which the demand of service tax has been made in these appeals are analogous/identical to the activity which has been under scrutiny in the final order stated supra. The Tribunal after appreciating the facts, observed in the above stated final order as under:-

"8.1 The issue that comes up for appellate decision is whether the activities of supply of equipment would fall within the ambit of supply of tangible goods or not. In the present case, the appellants contend that the transaction would not fall within the supply of tangible goods for the reason that the appellant has transferred possession as well as effective control of the equipment.

8.2 The definition of supply of tangible goods is as follows:-

'Taxable services means any service provided or to be provided to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and the effective control of such machinery, equipment and appliances'

From the above definition, when there is supply of use of equipment without transferring right of possession and effective control of the equipment, the same would fall within the category of supply of tangible goods service. The department contends that the theatre owners do not have any right of possession of the equipment and that the appellants have not transferred the right of possession. That since the appellant has retained certain rights and also put down conditions that the theatre owners shall ensure that the appliances connected to the VSAT remains switched on all times that is 24 hours a day in order to enable the appellant to have access to the QCP would amount to retaining the effective control over the equipment. In the decision of G.S. Lamba & Sons Vs. State of Andhra Pradesh (supra), the Hon'ble High Court has summarized the meaning and transfer of possession as well as retaining effective control over machinery. The relevant portion of the decision is as under:-

'30. From the judicial decisions, the settled essential requirement of a transaction for transfer of the right to use goods are : (i) it is not the transfer of the property in goods, but it is the right to use property in goods; (ii) Article 366(29A)(d) read with the latter part of the clause (29A) which uses the words, "and such transfer, delivery or supply", would show that the tax is not on the delivery of the goods used, but on the transfer of the right to use goods regardless of when or whether the goods are delivered for use subject to the condition that the goods should be in existence for use; (iii) in the transaction for the transfer of the right to use goods, delivery of goods is not a condition precedent, but the delivery of goods may be one of the elements of the transaction; (iv) the effective or general control does not mean always physical control and, even if the manner, method, modalities and the time of the use of goods is decided by the lessee or the customer, it would be under the effective or general control over the goods; and (v) the approvals, concessions, licences and permits in relation to goods would also be available to the user of goods, even if such licences or permits are in the name of owner (transferor) of the goods, and (vi) during the period of contract exclusive right to use goods along with permits, licences etc., vests in the lessee..'

8.3 Following the said decision, we are of the view that the activity carried out by the appellant, involving supply of tangible goods for use, since such supply also involves transfer of right of possession and effective control of such goods, the said activity would not fall under "supply of tangible goods" service. Moreover, the appellant has furnished documents which show that the said user fee collected is assessed under the VAT Act. The levy of VAT and service tax being mutually exclusive, the demand is not sustainable on this ground also. The demand raised and related penalties will therefore require to be set aside which we hereby do.

6.2 The appellant has been discharging VAT on the said activity holding that the transfer of right to use the equipment being a deemed sale under clause 29A of the article 366 of the Constitution. The sub-clause (f) of Section 66E (declared services) refers to transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods. Whereas, in the present case the supply of goods involves transfer of right of possession and effective control on such goods and therefore would fall under the category of deemed sale. For better appreciation the relevant provisions of Section 65(B)(44) after July 2012 is reproduced as under:-

"(44) "service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include-

(a) an activity which constitutes merely,-

(i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or

(ii) such transfer, delivery or supply of any goods which is deemed to be a sale within t

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he meaning of clause (29A) of Article 366 of the Constitution; or (22) "declared service" means any activity carried out by a person for another person for consideration and declared as such under section 66E; 65B(51) "taxable service" means any service on which service tax is leviable under section 66B; 66E Declared Services - The following shall constitute declared services, namely:-- (f) transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods;" The Tribunal having already analysed the nature of the activities in the appellant's own case for a previous period, we are of the considered opinion that the activity does not fall within the definition of service under the Finance Act, 1994 as amended in 2012. 7. In the result, impugned orders are set aside and the appeals are allowed with consequential reliefs, if any.
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